A published opinion out of Alameda County helps us to assess a spouse entitlement to spousal support and attorney’s fees when there has been a history of domestic violence.
Veronica and Curtis married in 1999. Veronica filed for divorce in 2010. At the initial hearing in the case Curtis was ordered to pay $10,000 per month in spousal support and to contribute $20,000 toward Veronica’s attorney’s fees and costs.
Subsequently Curtis requested relief from paying temporary spousal support citing to Veronica’s May 2008 misdemeanor conviction for battery committed against a spouse (Pen. Code, § 243, subd. (e)(1)). He also further detailed the history of domestic abuse, alleging it had generated 19 written police reports, five arrests, three criminal convictions, three criminal protective orders, one civil temporary restraining order, and three probationary periods. She also was presently on probation as a result of the May 2008 conviction, and there was a criminal protective order currently in effect that was set to expire in May 2011. The trial court noted Veronica’s 2008 conviction for domestic violence created a rebuttable presumption under Family Code section 4325 that an award of spousal support would be inappropriate. The court found she had “presented little in the way of mitigation” towards rebutting the presumption. Accordingly, her request for temporary spousal support was denied. This appeal followed.
California Family Code Section 4325 creates a rebuttable presumption that spousal support requests are not to be granted to spouses who have been convicted of domestic violence during the five years preceding the filing of a petition for dissolution. The statute provides: “(a) In any proceeding for dissolution of marriage where there is a criminal conviction for an act of domestic violence perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding, or at any time thereafter, there shall be a rebuttable presumption affecting the burden of proof that any award of temporary or permanent spousal support to the abusive spouse otherwise awardable pursuant to the standards of this part should not be made. [¶] (b) The court may consider documented evidence of a convicted spouse’s history as a victim of domestic violence, as defined in Section 6211,[ ] perpetrated by the other spouse, or any other factors the court deems just and equitable, as conditions for rebutting this presumption. [¶] (c) The rebuttable presumption created in this section may be rebutted by a preponderance of the evidence.”
Veronica argued that her misdemeanor conviction for domestic violence did not fall under the language of 4325. The Appellate Court did not adopt her argument:
We also observe that a spouse who has pled nolo contendere to misdemeanor domestic violence is nonetheless afforded the opportunity to rebut, by preponderance of the evidence, the presumption created by section 4325. Thus, the plea itself does not automatically result in the denial of support to an offending spouse. Instead, he or she merely has to rebut the negative presumption created by the conviction. Accordingly, we conclude a plea of nolo contendere to a charge of misdemeanor domestic violence, made within five years prior to the filing of the dissolution proceeding, may be used as the basis for presumptively denying temporary spousal support under section 4325.
This case demonstrates the significant consequences for a perpetrator of domestic violence. I also help us to understand the underlying policy behind the remedies, i.e., to ensure that a victim of domestic violence is not financing the abusive spouse.
Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.